New York, 06 December 2017
Statement by the President Kolinda Grabar-Kitarović at the SC debate on Reports of the ICTY and Mechanism for International Criminal Tribunals
Twenty-four years ago, Croatia was one of the States which strongly advocated for the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY). Its creation lifted the hopes of thousands of Croatians, suffering at the hands of a merciless aggressor. Croatia looked to the ICTY to shield its citizens from grave breaches of international humanitarian law and to punish perpetrators and their sponsors.
Croatia shares assessments that the ICTY greatly lived up to the expectations of the international community, having played an important role in the fight against the culture of impunity and represented an instrument in ensuring accountability for war crimes, crimes against humanity and genocide. Equally important is the Tribunal’s role in giving voice to over one hundred thousand victims of horrific crimes.
The Tribunal has demonstrated that crimes will not go unpunished, and that the international community has found a means through which it can and must react. This is confirmed by the fact that following the establishment of the ICTY, the international community established other ad hoc tribunals and the International Criminal Court, taking into account its experience with the ICTY, its best practices and shortcomings.
A quarter of a century later, as the Tribunal closes its doors, we assess its work and legacy against its expected role in securing justice for victims of all war crimes committed in the territory of the former Yugoslavia, paving the path to reconciliation and putting the troubled past behind. Allow me at this point to express my deepest respect for the victims of crimes committed on all sides, and especially extend my heartfelt condolences to the families of all those who perished or remain missing.
In the overall assessment of the work of the Tribunal we have to distinguish between legal assessment of its work and political connotations attached. Here, I can only speak for Croatia.
When we look at the ICTY’s record in regard to bringing to justice perpetrators of war crimes committed during the onslaught on Croatia, we can be fairly satisfied with its legacy. Let me, as an example, highlight the Martić and the Babić case, where the Tribunal established the existence of a joint criminal enterprise to expel the Croat population from occupied Croatian territory in order to create a Greater Serbia. I also note that two so-called Yugoslav People’s Army officers responsible for the unimaginable atrocities at Ovčara, where over 260 Croatian prisoners were executed by Serbian forces and buried in a mass grave, were convicted and sentenced. One of them has since died in prison and the other one was released early. In the Strugar case, the ICTY convicted yet another Yugoslav People’s Army officer for attacks on the civilian population of Dubrovnik and destruction and wilful damage to UNESCO protected heritage site.
On the other hand, last month, Croatia marked another mournful anniversary of the tragedies and atrocities of war in the autumn of 1991.
Besieged for three long months and levelled to the ground, the city of Vukovar and its inhabitants suffered a fate unseen in Europe since World War II. Nearly a thousand white crosses at the Vukovar cemetery stand today as a reminder of the massacre and for the victims exhumed from mass graves in and around the city. They also stand for 86 children killed during the siege of Vukovar, the youngest being a six-month old infant. In Croatia, to borrow the words of ICJ Judge Cancado Trinidade, there was “an onslaught, not exactly war.”
Regrettably, for the horror of the three month siege of Vukovar, the ICTY did not charge anyone.
While the judgement in the trial of Ratko Mladić brought a degree of relief to the families of his many victims of the genocide in Srebrenica, here I remind again that it was in Croatia where in 1991 he began his infamous warpath, which he later continued in neighbouring Bosnia and Herzegovina. Hundreds of his victims in Croatia, in Škabrnja or Nadin, to name the infamous examples, never saw him stand trial for those crimes. What is more, they were never even included in his indictment.
As some of these most horrific crimes occurred in November 1991, they were commemorated in Croatia only a few days before the final judgements rendered by the ICTY, thus creating an emotionally highly sensitive setting.
Sharing some critical assessments about the ICTY does not diminish our support for the work of this Tribunal. As in all justice systems in the world, there are deficits. I note that the ICTY Prosecutor himself has in the past publicly stated that in some cases that resulted in acquittals of the defendants, he respects the judgments of the judges, but “fundamentally disagrees” with them. Similarly, Croatia fully supports the work of the ICTY and respects all its judgements, even if it may on occasion express its disagreement with certain aspects of the Tribunal’s work.
It has to be said in the final analysis that in more than 10 thousand days of its duration, the ICTY spent too much time on procedural and status related matters and not enough on providing the victims with a true sense of justice.
We have stated in this chamber on many occasions that justice delayed is justice denied. On far too many occasions, justice came too late or not at all.
It has to be underlined that a fair trial and the due process of law in front of the ICTY depended on the interaction of responsible work of the Office of the Prosecutor, defense counsel and judges.
Furthermore, one of the results of the protracted work of the Tribunal, achievements in putting the focus on the future and reconciliation and future, were often set back with particular judgments that provoked opposing interpretations, not allowing for the sands of time to settle over the troubled history of the area.
Lastly, the mastermind of the Greater Serbian project that brought on the tragedy that hit the former Yugoslavia, Slobodan Milošević evaded the final legal judgement. This remains a gaping hole in the Tribunal’s legacy.
The Tribunal was not established to determine the legitimacy and justification of wars, but rather whether certain individuals acted in accordance with the laws of war, in accordance with international humanitarian and criminal law.
Therefore, this Tribunal was not a court dealing with the legitimacy of war, but with the criminal responsibility of individuals during the course of war. Nevertheless, despite the fact that the Tribunal judged individuals, the quagmire of political connotations in individual judgements, legal and political consequences that resulted and that will result from these judgements, including the work of this Tribunal as a whole, is unavoidable.
However, throughout its work the ICTY did contribute to the realization that crimes were committed during the war by all sides in the conflict and that these findings facilitated the process of accountability.
It is not easy to find strength to admit that some of your own compatriots have committed crimes and that they should be held accountable for them. We have faced that truth in Croatia and expect nothing less from others. However, there is a difference between dealing out individual responsibility and collective guilt.
In creating the ICTY, the Security Council tasked the Tribunal to establish individual criminal responsibility and confined the Tribunal to the strict application of existing international humanitarian and criminal law. The ICTY was not to create precedents or legislate international humanitarian and criminal law. Its duty was rather to uphold the highest of standards with regard to the interpretation and appropriate application of existing law. The mandate of the ICTY is to establish individual criminal responsibility for committed criminal acts, that is, to prosecute concrete individuals for concrete deeds – no more and no less than that.
Consequently, we reject interpretations of the ICTY’s recent judgement in the Prlić et al case that it was Croatia, Croatian leadership at the time or the Croatian nation that were indicted or found guilty in front of the ICTY. The ICTY was dealing with the individual defendants who were before the Tribunal and who were parties to the proceedings. Any interpretation of this judgement outside the legal framework and the absence of explicit findings necessary to establish criminal responsibility of Croatia or its leadership is misleading and erroneous.
It is important to stress that the same Appeals Chamber in July 2016, when rejecting Croatia’s amicus curiae request and interpreting the 2013 Trial Judgement, clearly and unequivocally stated that no explicit findings concerning the participation in a joint criminal enterprise of high Croatian officials were made, that they were neither indicted nor charged in the case, and that they were not found guilty of any crimes.
Furthermore, the same Appeals Chamber confirmed that the Tribunal does not have the competency to make findings on state responsibility and that the findings of the Trial Chamber in no way constitute findings of responsibility on the part of Croatia.
The recent ICTY judgement in the Prlić et al case should not be misused to imply collective guilt on the Croats in Bosnia and Herzegovina or to hinder their legitimate political objectives as one of the three constituent peoples in the country. No community there should feel unsettled and that is, unfortunately, what we have witnessed these days. Croats must feel secure in the homeland they share with Bosniaks and Serbs. I appeal to all politicians in Bosnia and Herzegovina, to think first and foremost of their responsibility for the good of both entities and Bosnia and Herzegovina as a whole. Croatia, as a co-signatory and guarantor of the Dayton Peace Accords has a special responsibility for the stability of our neighbour and for the preservation of Croats in their homeland of Bosnia and Herzegovina. We will relentlessly advocate for productive dialogue among the constituent peoples and all minorities in Bosnia and Herzegovina, thus paving the way for its prosperous future in the European Union.
It is a historical fact that Croatia was crucial in the very survival of Bosnia and Herzegovina as an independent State. While a victim of aggression and under threat itself at the time, Croatia for years sheltered hundreds of thousands of refugees from Bosnia and Herzegovina and treated more than ten thousand of its wounded in Croatian hospitals. The overwhelming part of humanitarian and military aid to Bosnia and Herzegovina arrived from or through Croatia. At the same time, Croats in Bosnia and Herzegovina were victims of war crimes by the Army of Bosnia and Herzegovina, in particular in Central Bosnia. Those crimes still remain unpunished.
Ultimately, Croatia played a pivotal role in defeating Greater Serbian aggression. Upon the request for aid from Sarajevo and in accordance with our bilateral agreements, Croatia prevented the imminent danger of a repetition of the Srebrenica genocide in Bihać in 1995. The Croatian Army, supported by the Croatian Defense Council (HVO) and the Army of Bosnia and Herzegovina, confronted Slobodan Milošević with his inevitable and total military defeat and forced him to the negotiating table, thus ending the war in Bosnia and Herzegovina.
Let me be clear, when we in Croatia speak about the Greater Serbian aggression that brought the conflict, destruction of property and loss of life, we do not in any way attach blame to the Serbian people as a whole, but highlight the sole responsibility of Slobodan Milošević and his regime at the time.
In closing, my wish is that we leave the war and all the misfortunes in our neighbourhood behind us, that we pay tribute to all the victims, condemn all the crimes, but that we primarily and above all look foremost to the future.
With the closing of the Tribunal, we continue to bear the responsibility of finding the strength to reconcile all nations and all peoples in this region.
Saint Pope John Paul II said ˝no peace without justice, no justice without forgiveness...the path of forgiveness, which opens the way to mutual understanding, respect and trust.˝
Victims of crimes committed on all sides and families of all those who perished or remain missing deserve justice. Some received it in The Hague, many did not. Crimes must be addressed for the benefit of our future. Croatia has done this and will continue to do this, and expects this from others.
I call upon the other leaders in our neighbourhood to ensure that the ICTY’s judgments are not misinterpreted, misused or misconstrued, but rather to view this moment as the beginning of a new period. A period of mutual understanding, respect and trust.
My responsibility is to improve relations with our neighbours. My responsibility is to focus on the future. I hope that you will all agree that it is not only mine, but our common responsibility.
Source - http://predsjednica.hr/objava/2/3/1976